The Supreme Court has allowed an appeal by Bernard and Helen McDonagh and discharged interlocutory orders requiring them to leave Clare County Council land at Cahercallamore. The decision concerns interim relief; the underlying dispute is to proceed to a full hearing.
The Council had sought orders over the family’s occupation of the site with caravans and mobile homes. The parties accepted that the occupation was trespass and unauthorised development under planning law. The High Court granted the orders, and the Court of Appeal upheld them.
Writing for the Supreme Court, Mr Justice Gerard Hogan said the caravans and mobile homes were the McDonaghs’ dwelling for the purposes of Article 40.5 of the Constitution because they resided there. He also found they had raised a fair question about whether the site was their “home” under Article 8 of the European Convention on Human Rights. Those protections did not make the occupation lawful, but required the court to weigh the circumstances before granting an order to leave.
The judge said neither lower court had carried out the formal proportionality assessment required in the circumstances. He considered that the Council was acting both as landowner and planning authority, but also had housing responsibilities. The evidence showed that accommodation had been offered and refused; the judgment records disputes over whether the options met the family’s Traveller-specific and medical needs. Hogan J said it was at least arguable that the Council had not met its statutory housing obligations.
The court also considered that the family had nowhere else in the Council’s area where they could lawfully live, and that requiring them to leave would effectively render them homeless. Hogan J found no immediate threat to public safety or third-party amenities from their occupation at this site. He stressed that the ruling did not excuse trespass or planning breaches, and that circumstances could change.
The appeal was allowed and the mandatory interlocutory orders were discharged. The Council was directed to file a statement of claim within two weeks, followed by the McDonaghs’ defence within a further two weeks. The appellants were then directed to seek a motion for directions so the case could proceed promptly to a full hearing. The judgment says its scope is limited to the McDonaghs, their young children living with them, and their adult son who lives in a mobile home on the site and cares for Mrs McDonagh.